#28263, 28264-aff in pt & rev in pt-SRJ 2018 S.D. 16
IN THE SUPREME COURT OF THE STATE OF SOUTH DAKOTA
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#28263
IN RE: THE MATTER OF THE ISSUANCE OF A SUMMONS COMPELLING AN ESSENTIAL WITNESS TO APPEAR AND TESTIFY IN THE STATE OF MINNESOTA
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#28264
IN RE: THE MATTER OF THE ISSUANCE OF A SUMMONS COMPELLING AN ESSENTIAL WITNESS TO APPEAR AND TESTIFY IN THE STATE OF MINNESOTA
APPEAL FROM THE CIRCUIT COURT OF THE THIRD JUDICIAL CIRCUIT MOODY COUNTY, SOUTH DAKOTA
**** THE HONORABLE PATRICK T. PARDY Judge
**** CONSIDERED ON BRIEFS JANUARY 8, 2018 OPINION FILED 02/14/18 JASON UNGER Flandreau, South Dakota Attorney for Appellants, M.M.W. & William Joseph Wilkie.
MARTY J. JACKLEY Attorney General
CRAIG M. EICHSTADT Assistant Attorney General Attorneys for Appellee, Pierre, South Dakota State of South Dakota. #28263, #28264
JENSEN, Justice
[¶1.] Appellant William Joseph Wilkie (Wilkie) and his granddaughter,
Appellant M.M.W., each appeal the entry of a circuit court order in two separate
proceedings. The orders summon Wilkie and M.M.W. to appear and testify in an
out-of-state criminal proceeding in Clay County, Minnesota. We consolidate the
cases for resolution of their appeals. Wilkie and M.M.W. claim their rights as
victims were violated because they were not advised of their right to counsel during
the circuit court proceedings. They also claim the circuit court erred in issuing the
orders. We affirm the order pertaining to Wilkie and reverse and remand the order
pertaining to M.M.W.
Background
[¶2.] Dustin James Wilkie (Dustin), Wilkie’s son and M.M.W.’s father, was
charged with domestic assault of M.M.W. in Minnesota. M.M.W. immediately
called her grandfather after the alleged assault to report the incident. M.M.W.
subsequently moved to South Dakota to live with Wilkie. The State of Minnesota
sought to summon Wilkie and M.M.W. as witnesses at Dustin’s trial.
[¶3.] On April 26, 2017, a judge of the Seventh Judicial District of the State
of Minnesota issued two certificates declaring Wilkie and M.M.W. necessary and
material witnesses in the prosecution of the criminal action against Dustin. The
certificates also stated there were no known hardships for either witness to testify.
The certificates were supported by affidavits submitted by the Clay County,
Minnesota prosecuting attorney, setting forth the facts in support of the request to
summon the testimony of Wilkie and M.M.W. The certificates directed Wilkie and
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M.M.W. to be available to testify for one to three days in May of 2017 in Moorhead,
Minnesota, an approximate three-hour drive from Flandreau, South Dakota, where
Wilkie and M.M.W. were living.
[¶4.] The Minnesota certificates were issued in conformity with the Uniform
Act to Secure the Attendance of Witnesses from Without a State in Criminal
Proceedings (Uniform Act), codified at SDCL 23A-14-14 through SDCL 23A-14-24.
Upon receipt of the Minnesota certificates, the Moody County State’s Attorney filed
a motion requesting the South Dakota circuit court to enter an order summoning
Wilkie and M.M.W. to appear and testify in the Minnesota criminal proceeding.
Pursuant to SDCL 23A-14-151 and SDCL 23A-14-16,2 the circuit court ordered
Wilkie and M.M.W. to attend a hearing in Flandreau on May 8, 2017, to show cause
If a judge of a court of record in any state . . . certifies under the seal of such court that there is a criminal prosecution pending in that court, . . . that a person in this state is a material witness in such prosecution[,] . . . and that his presence will be required for a specified number of days, a South Dakota circuit judge of the county in which such person is, shall, upon presentation of such certificate, fix a time and place for a hearing, and shall make an order directing the witness to appear at the hearing.
If a hearing is ordered pursuant to § 23A-14-15 and a judge determines that a witness is material and necessary [and] that it will not cause undue hardship to the witness to be compelled to attend and testify in the prosecution[,] . . . [the judge] shall issue a summons, with a copy of the certificate attached, directing the witness to attend and testify in the court where the prosecution is pending . . . at a time and place specified in the summons. In any such hearing the certificate shall be prima facie evidence of all the facts stated therein.
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why they should not be ordered to attend and testify in the Minnesota criminal
case. On the date of the hearing, Wilkie and M.M.W. mistakenly drove to
Moorhead, Minnesota, believing the hearing would be held there. By the time the
mistake was realized, it was impossible for the pair to travel back to Flandreau in
time for the hearing. The circuit court allowed Wilkie to voice his objections to the
State’s motion over the telephone.
[¶5.] Wilkie and M.M.W. were unrepresented by counsel at the hearing, and
the circuit court did not advise or discuss consultation with an attorney. Wilkie
represented over the phone that M.M.W. had “a rough year in the past year” and
was seeing a counselor. Wilkie also stated that he did not want M.M.W. to have to
relive the incident by testifying and that it was “starting to cost [Wilkie] a lot of
money to go back-and-forth.” The circuit court stated that it had reviewed a letter
from M.M.W.’s counselor dated May 5, 2017.
[¶6.] The court determined that Wilkie had failed to show a personal
hardship. As to M.M.W., the court noted the severity of the underlying charges
against M.M.W.’s father and the belief that the State of Minnesota could implement
procedures to protect M.M.W. upon her request. The circuit court entered orders
directing both Wilkie and M.M.W. to appear and testify as witnesses at the
Minnesota trial.
[¶7.] Wilkie and M.M.W. raise two issues for our review:
1. Whether Wilkie and M.M.W.’s rights as victims were violated by not being advised of their right to counsel.
2. Whether the circuit court erred in issuing an order for Wilkie and M.M.W. to appear and testify in Minnesota criminal court.
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Analysis
Jurisdiction
[¶8.] In its brief, the State requests this Court to dismiss the appeal for lack
of jurisdiction. The State argues this Court lacks appellate jurisdiction because
there is not a criminal statute conferring such jurisdiction in SDCL chapter 23A-32.
The State correctly notes that “[t]his Court has only ‘such appellate jurisdiction as
may be provided by the legislature. The right to appeal is statutory and therefore
does not exist in the absence of a statute permitting it.’” State v. Schwaller, 2006
S.D. 30, ¶ 5, 712 N.W.2d 869, 871 (quoting Dale v. City of Sioux Falls, 2003 S.D.
124, ¶ 6, 670 N.W.2d 892, 894).
[¶9.] The State’s argument is premised on its categorization of the appealed
orders as criminal matters. The State recognizes the possibility that the
proceedings are civil in nature, citing Codey ex rel. State of New Jersey v. Capital
Cities, American Broadcasting Corp., 626 N.E.2d 636 (N.Y. 1993), and acknowledges
that if the proceedings are civil, then the case may be appealable under SDCL 15-
26A-3(2) or (4). Wilkie and M.M.W. assert that the case is properly appealed as a
matter of right under SDCL 15-26A-3 and SDCL 15-26A-4.
[¶10.] In Codey, the Court of Appeals of New York determined that
proceedings to summon a witness under the Uniform Act are civil proceedings. 626
N.E.2d at 640. The court stated that an order determining the “validity and force of
another State’s demand for a witness’s appearance . . . is analytically analogous to a
motion to quash a subpoena, which is ordinarily deemed civil in nature.” Id.
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[¶11.] We conclude a proceeding to summon a witness to testify in an out-of-
state criminal proceeding under SDCL 23A-14-14 through SDCL 23A-14-18 is a civil
proceeding.3 Although the South Dakota proceedings are ancillary to a criminal
proceeding in another state and the governing statutes are found in the criminal
procedure section of the South Dakota Code, the proceedings do not involve the
arrest, charge, or punishment of an individual for a public offense. Rather, the
proceedings represent the circuit court’s determination whether a witness is
material and necessary, and whether the summons will cause the witness undue
hardship under SDCL 23A-14-16. These determinations are civil in nature and do
not implicate the resolution of a criminal charge. Thus, this Court has jurisdiction
to consider the appeals from these orders as a “final order affecting a substantial
right, made in special proceedings” under SDCL 15-26A-3(4).
State’s Motion to Strike
[¶12.] The State also moves this Court to strike certain statements and
materials referenced by Wilkie and M.M.W. in their briefs. First, Wilkie and
M.M.W. reference motions they filed to stay the orders summoning their testimony
pending their appeals and the circuit court’s denial of the motions for lack of
jurisdiction. The State concedes the motions are in the record, but the record does
3. Even though this proceeding is civil in nature, the entry of an order placing a witness into the custody of an officer of a requesting state under SDCL 23A-14-17, or a criminal contempt application under SDCL 23A-14-18, may give rise to a constitutional right to counsel. We have previously recognized that a criminal contempt citation in a civil proceeding triggers constitutional protections. Sazama v. State ex rel. Muilenberg, 2007 S.D. 17, ¶ 24, 729 N.W.2d 335, 344.
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not contain a ruling or a transcript of a hearing. Second, the State asks to strike
references by Wilkie and M.M.W. concerning further proceedings in the Minnesota
criminal case while these appeals were pending. The record does not contain
evidence of such proceedings. Because the contested references are not material to
this appeal, we do not consider these references.
Victim’s Right to Counsel
[¶13.] Wilkie and M.M.W. argue that the recent amendment found in the
South Dakota Constitution, article VI, § 29, approved by South Dakota voters in
November of 2016, otherwise known as Marsy’s Law, guarantees crime victims the
right to be informed that they may consult an attorney about their rights as
victims.4 They suggest this right is commensurate with a criminal defendant’s
Sixth Amendment right to the assistance of counsel. Wilkie and M.M.W. argue
that, at a minimum, they were deprived of their rights under Marsy’s Law because
they were not properly notified of their right to consult an attorney. The State
responds that Minnesota law applies to this proceeding. The State also argues that
the victim rights set forth in South Dakota’s Constitution are not applicable to a
crime committed outside South Dakota. Finally, the State asserts that even if
4. Specifically, Article VI, § 29 of the South Dakota Constitution provides:
A victim shall have the following rights, beginning at the time of victimization: .... 19. The right to be informed of these rights, and to be informed that a victim can seek the advice of an attorney with respect to the victim’s rights. This information shall be made available to the general public and provided to each crime victim in what is referred to as a Marsy’s Card.
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Marsy’s Law is applicable, Wilkie and M.M.W. are not entitled to the appointment
of counsel but at most, to be advised of a right to consult with an attorney. To
resolve this issue, we only address the narrow question whether the Marsy’s Law
rights in South Dakota’s Constitution are applicable to crimes committed outside
the State of South Dakota.
[¶14.] “Constitutional amendments are adopted for the purpose of making a
change in the existing system and we are ‘under the duty to consider the old law,
the mischief, and the remedy, and interpret the constitution broadly to accomplish
the manifest purpose of the amendment.’” Doe v. Nelson, 2004 S.D. 62, ¶ 15, 680
N.W.2d 302, 308 (quoting South Dakota Auto. Club, Inc. v. Volk, 305 N.W.2d 693,
697 (S.D. 1981)). “The object of constitutional construction is ‘to give effect to the
intent of the framers of the organic law and the people adopting it.’” Davis v. State,
2011 S.D. 51, ¶ 77, 804 N.W.2d 618, 643 (Gilbertson, C.J., concurring in result)
(quoting Doe, 2004 S.D. 62, ¶ 12, 680 N.W.2d at 307)). “A constitutional provision,
like a statute, must be read giving full effect to all of its parts.” South Dakota Bd. of
Regents v. Meierhenry, 351 N.W.2d 450, 452 (S.D. 1984). “Where a constitutional
provision is quite plain in its language, we construe it according to its natural
import.” Brendtro v. Nelson, 2006 S.D. 71, ¶ 16, 720 N.W.2d 670, 675.
[¶15.] In considering whether Marsy’s Law is applicable to victims of crimes
committed outside South Dakota, we examine the language of Article VI, § 29. The
second to the last paragraph of Article VI, § 29 succinctly expresses that the
purpose of Marsy’s Law is to “ensure the victim has a meaningful role throughout
the criminal and juvenile justice systems.” This language, along with the nineteen
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enumerated rights in Article VI, § 29, show that the predominant purpose of
Marsy’s Law is to ensure that crime victims are kept informed and allowed to
meaningfully participate in the criminal justice system throughout the time a crime
is prosecuted and punished. Further, Article VI, § 29 states that a victim may
assert and seek enforcement of these rights “in any trial or appellate court, or before
any other authority with jurisdiction over the case . . . .” (Emphasis added.) South
Dakota agencies and courts only have jurisdiction to prosecute and punish a
criminal offense committed “in whole or in part within the [S]tate.” State v.
Winckler, 260 N.W.2d 356, 360 (S.D. 1977).5
[¶16.] Expanding these rights in South Dakota’s constitution to victims of
crimes committed outside South Dakota is inconsistent with the expressed purpose
of Article VI, § 29. Where a crime occurs in another state, the victimization
occurred outside South Dakota and justice for the victim must be realized in the
state where the crime took place. Further, the victim’s ability to exercise the rights
to receive adequate information and to meaningfully participate throughout the
criminal process must also take place in the state where the crime occurred and the
criminal case proceeds.
[¶17.] At issue here is the right set forth in subsection 19, which states that a
victim has a right to be informed that he or she “can seek the advice of an attorney”
5. Wilkie and M.M.W. argue that the circuit court had jurisdiction here and the rights in Article VI, § 29 should be recognized by the court considering the out-of-state summons to testify. However, aside from claims of privilege and confidentiality, Article VI, § 29 makes no mention of victim rights associated with testifying at grand jury, testifying in court, or in responding to a subpoena or summons from the prosecutor.
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about the rights afforded in Article VI, § 29. This right, along with nearly all the
rights listed in Article VI, § 29, appears to place some affirmative obligations on law
enforcement, prosecutors, state and local corrections, and the courts in South
Dakota. If we were to interpret Article VI, § 29 to be applicable to crimes
committed outside of South Dakota, it would create an untenable situation of
potentially imposing affirmative obligations on South Dakota authorities and courts
over which they have no jurisdiction or authority to act. Moreover, it is unlikely, in
most instances, that South Dakota authorities or courts would be aware that an
individual present in the state is a victim of a crime in another state or have any
ability to redress such rights.
[¶18.] “This Court will not construe a constitutional provision to arrive at
strained, unpractical or absurd result.” Brendtro, 2006 S.D. 71, ¶ 30, 720 N.W.2d at
680 (quoting Breck v. Janklow, 2001 S.D. 28 ¶ 12, 623 N.W.2d 449, 455). Based
upon the plain language and stated purposes enumerated in the Amendment, we
hold that the constitutional rights set forth in Article VI, § 29 are inapplicable to
crimes committed wholly outside the State of South Dakota.6
6. The language of Article VI, § 29 also presents questions concerning the scope of a victim’s rights in civil proceedings. Specifically, we note the following language: “[t]he granting of these rights to any victim shall ensure the victim has a meaningful role throughout the criminal and juvenile justice systems and may not be construed to deny or disparage other rights possessed by victims. All provisions of this section apply throughout criminal and juvenile justice processes . . . .” S.D. Const. art. VI, § 29 (emphasis added). Because of our resolution of the narrow issue here, it is unnecessary to determine the applicability of Article VI, § 29 rights in a civil proceeding.
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[¶19.] Because the proceedings in South Dakota did not implicate Article VI,
§ 29 of the South Dakota Constitution, the circuit court had no obligation to advise
either Wilkie or M.M.W. of any rights under Marsy’s Law.
Circuit Court’s Order to Appear and Testify in Out-Of-State Criminal Proceedings
[¶20.] Wilkie and M.M.W. claim that there is not an adequate showing that
they are both material and necessary witnesses. Wilkie and M.M.W. also argue
they will suffer undue hardship if they are compelled to attend and testify in the
Minnesota criminal trial. They point to the fact that South Dakota has not yet had
the opportunity to address what constitutes undue hardship under SDCL 23A-14-
16. Appellants claim that South Dakota law is consistent with the Uniform Act as
adopted by the National Conference of Commissioners on Uniform State Laws in
1936. They cite cases from other jurisdictions which have adopted the same. See
Epstein v. People ex rel. N.Y., 157 So. 2d 705, 708 (Fla. Dist. Ct. App. 1963) (finding
no abuse of discretion in a state court’s decision to compel attendance of witness in a
sister state’s proceeding); Commonwealth v. Gasdik, No. 04-1415, 2004 WL
3186247, at *1 (Mass. Super. Nov. 10, 2004) (stating that “certain circumstances
such as a specific threat, the possibility of psychological harm, or the tender age of a
child witness might constitute an undue hardship,” but refusing to find such
circumstances in the case); In re Stoddard, 470 A.2d 1185, 1187 (Vt. 1983) (holding
it is essential for a trial court to state findings of fact as to necessity, materiality,
and undue hardship and not rely on facts stated in a certificate asking for the
attendance of a witness).
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[¶21.] As noted above, the circuit court’s order is akin to a ruling on a motion
to quash a subpoena—a discovery order. We review a circuit court’s decision on
discovery matters for an abuse of discretion. Novotny v. Sacred Heart Health Servs.,
2016 S.D. 75, ¶ 5, 887 N.W.2d 83, 87. Similarly, a circuit court’s ruling on
evidentiary questions “will not be overturned absent a clear abuse of discretion.”
St. John v. Peterson, 2011 S.D. 58, ¶ 10, 804 N.W.2d 71, 74. “An abuse of discretion
is ‘a choice outside the range of permissible choices.’” Coloni v. Coloni, 2017 S.D. 66,
¶ 6, 903 N.W.2d 745, 747 (quoting Rumpza v. Zubke, 2017 S.D. 49, ¶ 7, 900 N.W.2d
601, 604). We apply the abuse of discretion standard to the circuit court’s order
compelling Wilkie and M.M.W. to testify at the Minnesota criminal trial.
[¶22.] At the May 8, 2017 phone hearing, the circuit court made minimal oral
findings of fact and conclusions of law. The circuit court stated, in pertinent part:
The [c]ourt has reviewed the entire file, it appears that the underlying criminal allegation is very serious. . . . The [c]ourt is going to order that [Wilkie] appear as an essential witness personally. None of your comments really related to a hardship for yourself, so I will order that you appear, and I’m going to sign that order, sir.
In addition, based on the seriousness of the underlying offense, and the procedures that I’m sure their court and State can use as it relates to whatever testimony, if any, may be requested from [M.M.W.], I am going to sign that [o]rder as well. So [M.M.W.] will be commanded to appear.
[¶23.] SDCL 23A-14-16 requires “a judge [to] determine[] that a witness is
material and necessary [and] that it will not cause undue hardship to the witness to
be compelled to attend and testify in the prosecution.” (Emphasis added.) SDCL
23A-14-16 provides that the certificate from the requesting state is “prima facie
evidence of all the facts stated therein.” We have held in other contexts that prima
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facie evidence creates a presumption under SDCL 19-19-301. See Lord v. Hy-Vee
Food Stores, 2006 S.D. 70, ¶ 23, 720 N.W.2d 443, 453. Under SDCL 19-19-301, “a
presumption imposes on the party against whom it is directed the burden of going
forward with evidence to rebut or meet the presumption” and “[w]hen substantial,
credible evidence has been introduced to rebut the presumption, it shall disappear
from the action or proceeding . . . .” “[T]he substantial, credible evidence
requirement means that a presumption may be rebutted or met with such evidence
as a trier of fact would find sufficient to base a decision on the issue, if no contrary
evidence was submitted.” Nemec v. Goeman, 2012 S.D. 14, ¶ 21, 810 N.W.2d 443,
448 (quoting Stavig v. Stavig, 2009 S.D. 89, ¶ 16, 774 N.W.2d 454, 460).
[¶24.] Here, the certificates from the Minnesota court provided prima facie
evidence that Wilkie and M.M.W. were material and necessary witnesses for the
Minnesota criminal case. The Minnesota certificates and affidavits stated that
Wilkie and M.M.W. are material and necessary witnesses to prove the elements of
the alleged assault. The certificates specifically set forth that M.M.W. was a victim
of the assault and that M.M.W. called Wilkie by phone immediately after the
assault occurred. Neither Wilkie nor M.M.W. presented any evidence to refute this
prima facie showing of materiality and necessity. Wilkie and M.M.W. argue that
only one of them could be material and necessary witnesses in the Minnesota
prosecution, but they have failed to present any authority in support of their claim
that summoning one witness with knowledge precludes summoning the other
witness with similar knowledge.
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[¶25.] We turn then to the claim that the orders summoning testimony in the
Minnesota case will create a hardship on Wilkie and M.M.W. The certificates and
affidavits provide that there was no known reason that an order compelling Wilkie
and M.M.W. to testify would cause undue hardship. The circuit court permitted
Wilkie to appear by phone and present objections on behalf of both himself and
M.M.W. During the hearing, Wilkie claimed that the proceedings were starting to
cost him a lot of money to drive back and forth. He provided no specifics on what
costs he would incur or whether those costs would exceed the statutory
reimbursements under SDCL 23A-14-18. Wilkie’s other comments to the circuit
court addressed his concerns about M.M.W. being required to testify in the
Minnesota criminal trial. After considering Wilkie’s comments, the circuit court
found that none of Wilkie’s “comments really related to a hardship for yourself.”
[¶26.] On appeal, Wilkie argues that he “produced evidence of undue
hardship to both [M.M.W. and himself]” and also that he was not given an adequate
opportunity to present his own hardship to the circuit court. From our review, we
cannot say that the circuit court erred in finding that Wilkie failed to present any
evidence of hardship for himself. The court did not abuse its discretion in ordering
Wilkie to appear and testify in Minnesota.
[¶27.] In regard to M.M.W., Wilkie expressed his concern, as M.M.W.’s
caretaker, about the impact that testifying would have on M.M.W. A letter from
M.M.W.’s counselor was also submitted to the circuit court. The letter expressed
that M.M.W. was experiencing mental health issues as a result of stress and
trauma. The counselor’s letter opined that “testifying would likely negatively
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impact her mental health and cause an increase in her depressive symptomology,
trauma symptomology and suicidality.”
[¶28.] The circuit court did not make any finding on whether the counselor’s
letter and Wilkie’s statements rebutted the prima facie showing by the State of no
known hardship. Moreover, the State’s failure to present any evidence in response
to the mental health concerns raised by M.M.W. made it impossible for the circuit
court to adequately consider the hardship issue raised by M.M.W. The circuit court
simply noted the seriousness of the Minnesota charges and the “procedures that I’m
sure” the Minnesota court can employ in handling M.M.W.’s testimony. The circuit
court made no findings on hardship or the mental health concerns raised by
M.M.W.’s counselor if M.M.W. were required to testify. The failure of the circuit
court to make adequate findings on an issue is an abuse of discretion. See
Guardianship of Nelson, 2017 S.D. 68, ¶ 17, 903 N.W.2d 753, 758.
Conclusion
[¶29.] We affirm the order directing Wilkie to testify at the Minnesota trial.
We reverse and remand the order directing M.M.W. to testify. The record should be
further developed on M.M.W.’s claim of hardship so that the circuit court can make
adequate findings of fact under SDCL 23A-14-16 on the question of undue hardship.
[¶30.] GILBERTSON, Chief Justice, and ZINTER, SEVERSON, and KERN,
Justices, concur.
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